City of Mcalester v. Jones
| Decision Date | 02 March 1937 |
| Docket Number | Case Number: 26722 |
| Citation | 72 P.2d 371,181 Okla. 77,1937 OK 142 |
| Parties | CITY OF McALESTER v. JONES, County Treasurer |
| Court | Oklahoma Supreme Court |
¶0 1. TAXATION - Statutes - Provision for Rebate to Taxpayers of Penalties Paid on Delinquent Taxes Held Constitutional.
Section 9, art. 15, ch. 66, Session Laws 1935, providing that: "All penalties, interest and costs that have accrued on 1933 and prior ad valorem taxes on real and personal property in this state, and which during the three-year period next preceding the effective date of this act were collected by any county treasurer of this state along with the principal amount of said ad valorem taxes, but which penalties, interest and costs were placed by said county treasurer in a special fund in the county treasury and which are now held in said fund, shall be considered to be held in trust for the benefit of the party paying the tax, and shall, upon the presentation of a sworn claim therefor by said party paying the tax, be rebated and paid by the issuance of a cash voucher of the county treasurer drawn against said fund" - does not contravene the provisions of sections 53 and 54, art. 5, nor section 46 (t), art. 5, of the Constitution.
2. SAME - Legislature Held Empowered to Direct Refund to Taxpayers of Penalties Paid on Delinquent Taxes on Property Within Corporate Limits Where Fund not Claimed by City nor Appropriated to Municipal Purpose Prior to Effective Date of Enactment.
The county treasurer of Pittsburg county collected certain funds as penalties on delinquent taxes an property located within the corporate limits of the city of McAlester. No demand for payment of said funds to the city was made prior to the effective date of article 15, chap. 66, S. L. 1935. Said funds were not appropriated to any municipal purpose and were not involved in any contract between said city and any other person. Held, that there is no constitutional limitation upon the power of the Legislature to direct the refund of said funds to the taxpayers.
Appeal from District Court, Pittsburg County; R.W. Higgins, Judge.
Mandamus by the City of McAlester against Dan Jones, County Treasurer of Pittsburg County. Writ denied and plaintiff appeals. Affirmed.
Horton & Horton and Cornish & Cornish, for plaintiff in error.
W.J. Counts, County Atty., Mac Q. Williamson, Atty. Gen., and Randell S. Cobb, Asst. Atty, Gen., for defendant in error.
C.E. Hall, amicus curiae.
¶1 This action was instituted in the district court of Pittsburg county by the city of McAlester, hereinafter referred to as plaintiff, against the county treasurer, hereinafter referred to as defendant, wherein it was sought by mandamus to compel payment to plaintiff of certain funds which had been collected as penalties on ad valorem taxes paid on property located within the corporate limits of the city. The writ was refused by the trial court, and plaintiff has appealed.
¶2 The county treasurer, from July to December, 1934, and during January and the first eight days of February, 1935, had collected the sum of $3,885.71, as penalties on delinquent taxes on property located within the corporate limits of the city of McAlester. Upon his refusal to pay said funds to the city, this action was instituted.
¶3 Section 4623, C. O. S. 1921, section 36, chapter 173, Session Laws. 1923 (sec. 6247, O. S. 1931), provides:
See, also, section 6249, O. S. 1931.
¶4 By way of defense, it was alleged that the mayor and council of the city of McAlester had passed a resolution authorizing the county treasurer to hold said fund in a special account subject to the action of the Legislature, and in the event said penalties were remitted by the Legislature, that the impounded funds be returned to the taxpayers. Article 15, chapter 66, Session Laws 1935, became effective February 8, 1935. Said act provided that all penalties, interest, and costs which had accrued on unpaid ad valorem taxes and special assessments for 1934 and prior years should be waived, released, and canceled, in the event the taxes levied and assessed were paid on or before certain dates specified in the act. Section 9 of the act provides as follows:
"Section 9 All penalties, interest and costs that have accrued on 1933 and prior ad valorem taxes on real and personal property in this state, and which during the three-year period next preceding the effective date of this act were collected by any county treasurer of this state along with the principal amount of said ad valorem taxes, but which penalties, interest and costs were placed by said county treasurer in a special fund in the county treasury and which are now held in said fund, shall be considered to be held in trust for the benefit of the party paying the tax, and shall, upon the presentation of a sworn claim therefor by said party paying the tax, be rebated and paid by the issuance of a cash voucher of the county treasurer drawn against said fund."
¶5 The above act is one of a series of acts which provide for the waiver hand cancellation of penalties on delinquent taxes which were no doubt occasioned by the economic conditions generally prevailing in this state for the past several years. Chapter 1, Session Laws 1933, became effective February 11, 1933, and provided for the waiver and release of penalties on delinquent ad valorem taxes, provided that taxes were paid on or before December 1, 1933. On January 15, 1934, the Honorable Wm. H. Murray, Governor, issued an executive order whereby it was attempted to remit and commute penalties on delinquent taxes, provided the taxes were paid prior to July 1, 1934. In the case of Holliman v. Cole, 168 Okla. 473, 34 P.2d 597, it was held that the Governor was without authority to remit penalties on delinquent taxes and that the executive order was without effect.
¶6 It is stated in the briefs that after the effective date of the opinion a number of the county treasurers in the state, in anticipation of action by the Legislature at the next forthcoming session, impounded the penalties collected in a special fund so that in the event of a grant of authority from the Legislature, said penalties might be returned to the taxpayers; that this situation came to the attention of the Legislature and prompted the enactment of section 9, supra.
¶7 It is the contention of plaintiff that section 9, supra, is unconstitutional. We are referred to section 53, art. 5, prohibiting the releasing or extinguishing, in whole or in part, of the indebtedness, liabilities, or obligations of any corporation, or individual, to this state or any county or other municipal corporation thereof; section 54, art. 5, providing that the repeal of a statute shall not affect any accrued right or penalty incurred; section 46 (t) art. 5, prohibiting the passage of any local or special law remitting fines, penalties and forfeitures, and refunding moneys legally paid into the treasury.
¶8 Neither section 9, supra, nor any other portion of the act may be considered as a local or special law within the meaning of that term as used in the Constitution, for the reason that the act applies to all persons of a designated class throughout the state. City of Sapulpa v. Land, 101 Okla. 22, 223 P. 640; Gable v. Childers, 176 Okla. 360, 56 P.2d 357.
¶9 The fact that the makers of the Constitution prohibited the remission of fines, penalties, and forfeitures by local or special law gives rise to the implication that general laws on that subject are not prohibited by the Constitution. Such was the viewpoint adopted by the Supreme Court of Missouri in the case of State v. Koeln, 332 Mo. 1229, 61 S.W.2d 750; by the Supreme Court of Texas in the case of Jones v. Williams, 45 S.W. (2d) 130, 79 A. L. R. 983; by the Supreme Court of Arizona in the case of Biles v. Robey, 30 P.2d 841. The applicable constitutional provisions considered by the courts in these cases are practically identical with our own. Other cases involving the constitutionality of legislative acts remitting penalties, fines, and costs are collected in notes 68 A. L. R. 431, 79 A. L. R. 999. By the great weight of authority these acts are constitutional and valid.
¶10 Plaintiff argues that these authorities are not applicable here, since the tax penalties, upon payment of the county treasurer, immediately became the property of the plaintiff, and that the Legislature was without authority to take such property away from the city or otherwise deprive it of its vested right thereto.
¶11 It does not appear that any of...
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